Opinion
Index No. 2021-2310
04-19-2022
Frances WALL, Plaintiff, v. Ismat ALAM, Defendant.
For Defendant: John W. Bailey, Esq., Bailey, Johnson & Peck, P.C. For Plaintiff: Paul E. Davenport, Esq., Whiteman, Osterman & Hanna, LLP
For Defendant: John W. Bailey, Esq., Bailey, Johnson & Peck, P.C.
For Plaintiff: Paul E. Davenport, Esq., Whiteman, Osterman & Hanna, LLP
Thomas D. Buchanan, J.
This matter comes before the Court on the motion of Defendant, pursuant to CPLR 3211, to dismiss the Complaint in its entirety for failure to state a cause of action. Plaintiff has opposed the defense motion and has cross-moved for leave to amend the Complaint. The Complaint in this action contains three causes of action, sounding in slander, injurious falsehood and prima facie tort. Plaintiff's cross-motion, which is opposed by Defendant, seeks to amend the Complaint to include a claim of libel.
When addressing a motion to dismiss for failure to state a cause of action, a court will afford the complaint a liberal construction, accepting the allegations as true and giving the plaintiff the benefit of every favorable inference; the determination to be made is whether the facts alleged fit within some cognizable legal theory (see e.g. Woodhill Electric v. Jeffrey Beamish, Inc. , 73 AD3d 1421 [3d Dept 2010] ). Whether the plaintiff can ultimately establish the claim is not part of the analysis ( EBC I, Inc. v. Goldman, Sachs & Co. , 5 NY3d 11, 19 [2005] ).
Slander. Defendant argues that the Complaint fails to allege facts constituting slander, citing case law as to the elements of a claim of slander, including its description as the utterance of defamatory words ( Liffman v. Brooke , 59 AD2d 687 [1st Dept 1977] ). The defense asserts that Plaintiff's claim is based on a written workplace violence report, rather than any oral statement uttered by Defendant. A reading of the Complaint, however, shows that at paragraph 8 Plaintiff alleges that Defendant uttered a defamatory statement during a meeting with Plaintiff and the Town Supervisor. That is sufficient to defeat this portion of Defendant's motion.
Defamatory Meaning. Defendant also asserts that the statements complained of are not actionable, in that they are not susceptible of a defamatory meaning. A court must make the initial determination as to whether the statements complained of are reasonably susceptible of a defamatory connotation, thus warranting submission of the issue of defamation to the trier of fact ( Reus v. ETC Housing Corp. , 2022 WL 617904, 2022 NY Slip Op 01363 [3d Dept 2022] ). Here again, Defendant focuses on the workplace violence report to argue that none of the statements complained of can have a defamatory meaning within their context, and indeed, may be protected speech because they are contained in such a report. Defendant also argues that public policy favors protecting employees who file workplace violence reports from being sued for defamation.
Leaving aside the workplace violence report for the moment, the oral statement made in the meeting among Plaintiff, Defendant and the Town Supervisor is susceptible of a defamatory connotation. As alleged, Defendant falsely stated that Plaintiff threatened to kill her. Such a statement calls into question Plaintiff's fitness to serve as Chief of Police, thus injuring her in her profession (see e.g. Rossi v. Attanasio , 48 AD3d 1025 [3d Dept 2008] ). This is sufficient to defeat Defendant's motion to dismiss Plaintiff's slander claim.
Special Damages. Defendant asserts that Plaintiff's claims for injurious falsehood and prima facie tort must both be dismissed for failure to plead special damages adequately. Defendant is correct that both injurious falsehood and prima facie tort require pleading special damages with particularity (see e.g. Wasserman v. Maimonides Med. Ctr. , 268 AD2d 425 [2d Dept 2000] ).
Plaintiff responds that courts will, in appropriate situations, relax the requirement for specificity in pleading special damages. The Court's reading of the case cited by Plaintiff, however ( Fashion Boutique of Short Hills, Inc. v. Fendi, USA, Inc., 314 F3d 48 [2nd Cir. 2002] ), shows that it dealt with the standard for proof of general damages rather pleading special damages with particularity. The Complaint here makes only general allegations of general damages. Although the Complaint labels "loss of reputation" as special damages, case law treats loss of reputation as an item of general damages (see e.g. Brancaleone v. Mesagna , 290 AD2d 467 [2d Dept 2002] ; see also Sharratt v. Hickey , 20 AD3d 734 [3d Dept 2005] ).
Plaintiff also argues that the wide dissemination of the defamatory statements alleged "may result in a diminution of the employment opportunities available to her post-retirement." This, however, does not rise to the level of identifying actual losses, which is required for pleading special damages ( Talbot v. Johnson Newspaper Corp. , 124 AD2d 284 [3d Dept 1986] ). Plaintiff's second and third causes of action must be dismissed.
Cross-Motion to Amend Complaint. Plaintiff seeks leave to amend the Complaint to include a claim for libel. Indeed, the proposed amendment simply adds the two words "libel and" to the first cause of action in order to encompass the workplace violence report within Plaintiff's defamation claim. An application for leave to amend a complaint is to be freely granted in the absence of prejudice or surprise unless the proposed amendment is "wholly devoid of merit" ( Bast Hatfield, Inc. v. Schalmont Cent. School Dist. , 37 AD3d 987, 988 [3d Dept 2007] ). At first blush, the proposed amendment does not appear to be prejudicial. The factual allegations are identical to those in the original Complaint. Nor does it appear to be devoid of merit. As discussed above, the core allegation leveled by Plaintiff involves a defamatory statement.
Defendant points out that the statements in the workplace violence report could be protected speech, citing a line of cases that consider statements made in assessing an employees’ job performance. Defendant also makes a public policy argument that the Court should consider 1) the chilling effect that this lawsuit could have on future workplace violence reports, 2) the other remedies available if a false report is filed and 3) the limited audience of a workplace violence report and subsequent investigation.
The Court's reading of the cases protecting speech dealing with job performance shows that they rest on a finding that the alleged defamatory statement was a non-actionable expression of opinion and/or protected by a qualified privilege (see e.g. Ott v. Automatic Connector, Inc. , 193 AD2d 657 [2d Dept 1993] ; Williams v. Varig Brazilian Airlines , 169 AD2d 434 [1st Dept 1991] ). Similarly, Defendant's public policy argument essentially asserts a particular qualified privilege known as the "common interest privilege" (see Demas v. Levitsky , 291 AD2d 653, 661-61 [3d Dept 2002] ). Neither argument is sufficient to defeat Plaintiff's motion to amend.
The core of Plaintiff's claim — whether sounding in slander for the oral statement by Defendant or in libel for the same statement made in a workplace violence report — concerns a purported death threat, not a statement of opinion. Defendant's assertion of qualified privilege is procedurally premature, because a qualified privilege is an affirmative defense to be pled and proven by a defendant and is not appropriately adjudicated on motion to dismiss (Id. ; see e.g. Wilcox v. Newark Valley Cent. School Dist. , 74 AD3d 1558 [3d Dept 2010] ). Moreover, a showing of qualified privilege by Defendant would not invalidate Plaintiff's claim, but would instead impose on Plaintiff a burden to show malice (see Sanderson v. Bellevue Maternity Hosp., Inc. , 259 AD2d 888 [3d Dept 1999] ). Malice is specifically alleged in the original Complaint. The motion to amend the Complaint will therefore be granted.
The parties’ remaining contentions have been considered, but do not alter the outcome of these motions. Therefore, in consideration of the foregoing, it is hereby
ORDERED, that the motion by Defendant to dismiss the Complaint for failure to state a cause of action is GRANTED IN PART, and the second cause of action sounding in injurious falsehood and the third cause of action sounding in prima facie tort are hereby DISMISSED; and it is further
ORDERED, that the motion by Defendant to dismiss the Complaint is DENIED in all other aspects; and it is further
ORDERED, that the motion by Plaintiff to amend the Complaint to include a claim for libel is GRANTED, and it is further
ORDERED, that within thirty (30) days of the date of this Decision and Order, Plaintiff shall file the Amended Complaint in the form appended to her motion papers and serve a copy of it on Defendant.
Papers considered :
Notice of Motion; Affirmation of John Bailey, Esq., with annexed exhibit; Memorandum of Law; Notice of Cross-Motion; Affirmation of Paul Davenport, Esq., with annexed exhibits; Memorandum of Law; Reply/Opposition Affirmation of John Bailey, Esq.